Book Review: LaCroix’s The Ideological Origins of American Federalism

A clamor about states’ rights and federalism currently suffuses the media, often in the context of the Patient Protection and Affordable Care Act and states’ attempts to challenge the constitutionality of this legislation. These challenges use the term federalism to describe a bilateral political system whereby the states, as the assumed arbiter of good small government, should be protected from the national government’s assumed overreaching. Alison LaCroix’s The Ideological Origins of American Federalism shows why these debates are wrongly framed and why federalism’s intellectual roots demand that federal structure be understood as much more than a war cry for states’ rights. Many seem to conflate history or historical study with originalism, but the two are clearly different projects. This book mines colonial history to understand federalism as a core structure with intellectual pedigree, but those searching for an originalist bent should probably look elsewhere. On the other hand, anyone who wants to understand the structure and meaning of Our Federalism would be well served by taking the time to read Professor LaCroix’s book.

The history begins by studying the work of eighteenth century theorists to gain understanding of the intellectual and political debates surrounding “imperium in imperio,” literally the “dominion within the dominion.” Though some believed that autonomous sub-government with substantive power within the larger imperial government was undesirable, it was also a structure that existed within the British Empire. The early political theories of the empire and of Parliament’s legislative dominance formed a unique foundation for American politics. This account conveys that colonial thinkers did not inherently have a problem with the king as sovereign over the colonies, or with Parliament as having legislative power over empire-wide concerns, but they also believed that the colonies should be able to govern themselves as to local matters. The parallels between this colonial system and the soon-to-be formed American federal structure are clear.

The heart of the book is the discussion of James Madison’s ideas regarding the need for the national legislature to negate state laws in order to protect the coherence and power of the national government. Madison apparently believed that Congress should be able to reverse state laws that contradicted federal efforts, similar to the role of Parliament in the Privy Council (a monarchical authority that reviewed colonial legislative and judicial acts), an idea LaCroix refers to as “Madison’s negative” or the “federal negative.” (138) Madison was determined to ensure that the central government would not fail and could not be torn apart by the states, but others were not convinced that the federal negative was the proper route to ensuring state compliance. However, as LaCroix describes it, the Privy Council had both legislative and judicial functions from which the prior colonists could learn. Thus, the lawyer Thomas Jefferson’s compromise was to emphasize the power of judicial review through strong language in the Supremacy Clause and the concomitant structure of Article III courts, which were essentially an American invention.

This, to me, was one of the great revelations of the book. Anyone who has thought about early cases like Marbury v. Madison, Martin v. Hunter’s Lessee, or Cohens v. Virginia is familiar with the critique that Chief Justice Marshall created judicial review out of whole cloth. This has been an unsatisfying explanation for the power of judicial review, especially because the Supremacy Clause tells us that federal laws (the Constitution, statutes, treaties) are primary; how could federal courts be nothing more than a constitutional legerdemain? Professor LaCroix walks the reader through the private letters and public debates that led to the deliberate use of the judicial branch as the arbiter of federal power and state power, writing:

This structure centered on the Supremacy Clause, which bound state-court judges to follow congressional statutes, treaties, and the Constitution itself. In contrast to the negative, courts and judges would be the mediating agents between the national and state governments, ensuring the supremacy of the general government in its particular areas of competence while minimizing the size of the shadow that national oversight cast onto the states.

Moreover, in conjunction with the enumerated powers of Article I, section 8, the solution of the Supremacy Clause joined with judicial review maintained an important degree of separation between national and state lawmaking processes. (171)

LaCroix leads us to understand in chapter 5 that the “coupling of multiplicity as an idea with courts as a mode of mediating among multiple levels of government in turn created a new ideology: federalism.” (172) Thus, the delegates at the Constitutional Convention constructed a new form of government that deliberately allowed for multiple levels of governing and that protected the supreme, national government’s authority through the Supremacy Clause as well as the state and federal judiciaries, which were bound to uphold the United States Constitution.

I had a few desires that were unfulfilled in reading this valuable book. I wished that Professor LaCroix had told us how the modern version of federalism could learn from this historical account; students of history often are keen to find a modern application for the lessons learned from a new perspective on an already well-studied time. I also wished, paradoxically, that the book was either longer or shorter. I wished for it to be longer so that each chapter could be a stand-alone experience (and thus ‘teachable’ — Paul Starr’s classic The Social Transformation of American Medicine comes to mind). Perhaps a second edition would allow for this change. On the other hand, if each chapter cannot tell a noncontextualized story, then I wished that the book were a bit shorter, as some of the early chapters assume the reader remembers details of European history, and the last chapter seems to try to explain too much regarding the first Judiciary Acts.

Nevertheless, as I read this history of the foundation of Our Federalism, I found myself thinking that the book’s great gift was context. Context for understanding federalism as an intellectual endeavor and intentional structure rather than an accident of multiple colonies becoming multiple states becoming a confederation becoming a nation. Context for the position of the judicial branch in the national government and its task of negotiating between the national and the state governments. Context for understanding the descriptive, structural, and normative roles of federalism in the Constitution, in constitutional law, and in politics. And, context for the dissatisfaction one feels when hearing the term federalism automatically associated with the overused phrase “states’ rights.”

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Nicole Huberfeld is the Willburt D. Ham Associate Professor of Law and Bioethics Associate at the University of Kentucky where she teaches Constitutional Law and Healthcare Law and writes about the cross-section between the two.